Safety, Licensing Appeals and Standards Tribunal Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto, ON M7A 1N3

Tel:

416-314-4260

1 800-255-2214

TTY:

416-916-0548

1 844-403-5906

FAX:

416-325-1060

1 844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3

Tél. :

416-314-4260

1 800-255-2214

ATS :

416-916-0548

1 844-403-5906

Téléc. :

416-325-1060

1 844-618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before:

D. Stephen Jovanovic, Associate Chair

Date:

December 7, 2018

File:

17-001552/AABS

Case Name:

M.T. v. TD Insurance Meloche Monnex

Written Submissions By:

For the Applicant:

Paljinder S. Mahaar, Counsel

For the Respondent:

Jennifer Sweitzer, Counsel

OVERVIEW

The applicant, M.T., requests reconsideration of a decision of the Licence Appeal Tribunal (the “Tribunal”) that he was not entitled to continued benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) because his injuries fell within the Minor Injury Guideline (the “Guideline”).
M.T. was involved in two motor vehicle accidents in 2015: on March 1, 2015 (the “first accident”) and on August 19, 2015 (the “second accident”). This proceeding relates to entitlement to benefits arising out of the first accident only. His claim relates primarily to his back pain.
M.T. received benefits from the respondent, T.D. General Insurance Company (“T.D.”) in relation to the first accident. However, subsequent benefits were denied because T.D. considered M.T.’s injuries to be predominantly minor, falling within the Guideline, and M.T. had reached the $3,500 monetary limit for injuries to which the Guideline applies.
M.T.’s injuries from the second accident were not considered to fall within the Guideline.
The Tribunal determined that M.T. had not established that his injuries from the first accident fell outside the Guideline. A “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” According to s. 18(1) of the Schedule, the $3,500 applies if an impairment is “predominantly minor”, but s. 18(2) creates an exception if a pre-existing medical condition will prevent the applicant from achieving maximal recovery if subject to the limits in the Guideline. Accordingly, the main issues at the Tribunal were whether M.T.’s injuries caused by the first accident were predominantly minor, and whether he had a pre-existing medical condition that prevented maximal recovery.
The Tribunal applied the “but for” test to determine whether M.T.’s non-minor injuries were caused by the first accident. The Tribunal noted that the majority of the medical evidence was documented after the second accident and therefore did not assist in determining whether the injuries were caused by the first accident. The Tribunal found insufficient evidence of anything other than soft tissue injuries from the first accident.
In relation to M.T.’s argument that he had a pre-existing injury that prevented optimal recovery, the Tribunal considered the medical documentation from before the first accident. The Tribunal found some evidence of medical visits for back pain, but found that there was insufficient evidence to demonstrate a pre-existing condition preventing maximal recovery within the Guideline. M.T. does not challenge this finding on reconsideration.
In his request for reconsideration, M.T. takes issue with the Tribunal’s finding that his injuries resulting from the accident were predominantly minor. M.T. relies on the following grounds set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”):

(a) The Tribunal acted outside its jurisdiction or violated the Rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

T.D. has provided responding submissions and has also objected to M.T.’s late failing of his request for reconsideration, which was received after the 21-day period set out in Rule 18.1.
For the reasons that follow, I waive the requirement to request reconsideration within 21 days of the decision but dismiss the request for reconsideration.

Analysis

Late request

Rule 18.1 requires that a reconsideration request be made within 21 days of the date of the decision. The Tribunal issued its decision on December 21, 2017. M.T. submitted his request for reconsideration on January 30, 2018 and explained in his submissions that his counsel had been out of the country until January 10, 2018 and did not return to the office until January 15, 2018.
T.D. submits that the 21 day period should be respected and that M.T. has not provided an acceptable reason for the delay. T.D. submits that the request for reconsideration should not be considered.
Rule 3.1 states that the Rules may be waived in order to, among other things, “[e]nsure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.”
Considering the length of the delay, the absence of any argument from T.D. that it has been prejudiced by the delay, and the goal of resolving this matter on its merits, I waive the 21 day requirement in this case.

Use of “but for” test

M.T. argues that the Tribunal made a significant error of law by using the “but for” test to determine causation, rather than the “material contribution” test set out in Clements v. Clements, 2012 SCC 32.
T.D. argues that the Tribunal was correct to use the “but for” test, as the Supreme Court in Clements stated that the “material contribution” test is to be rarely applied, and only when the plaintiff was injured by multiple tortfeasors at the same time, and as a result it is impossible to know which of the tortfeasors caused the injury. T.D. argues that the present case is distinguishable, as there was a five month period between the two accidents during which time M.T. could have obtained medical evidence supporting causation. T.D. also submits that M.T. should not be permitted to raise the “material contribution” test on reconsideration, having not raised it in his submissions before the Tribunal.
I agree with T.D. that the reconsideration process is not an opportunity to raise new issues that could have been addressed at the hearing: 16-000066 v Waterloo Regional Municipalities Insurance, 2017 CanLII 19186 (Ont. LAT), at para. 13. T.D.’s hearing submissions indicated its position that the “but for” test is to be applied. If M.T. disagreed with that position, it ought to have raised the issue at the hearing.
In any event, I am not persuaded that the Tribunal ought to have departed from the “but for” test. M.T. has not provided any case in which the “material contribution” test, as set out in Clements, has been applied to causation in the no-fault accident benefit context. The Supreme Court in Clements emphasized that the “material contribution” applies only if there are two or more wrongdoers who each materially contributed to the plaintiff’s risk of injury, and should not be allowed to escape liability by pointing the finger at each other. The Court emphasized that the test does not apply where the injury may well have been caused by factors that are “not the fault of anyone”: para. 40. Whether and how this test could be adapted to a no-fault accident benefit scheme is not a question that I am in a position to adjudicate as a new issue on reconsideration.
Further, as M.T.’s injuries have been determined to be outside the Guideline in relation to the second accident, there is at least one accident that is the “but for” cause of M.T.’s non-minor injuries. Accordingly, this is not a case where one or more accidents caused the injuries but it is impossible to prove which one.
M.T. also argues that the Tribunal failed to give sufficient reasons for its decision to use the “but for” test. In my view, the Tribunal’s statement of the appropriate test was adequate, particularly as M.T. did not raise the “material contribution” test as an issue.

Jurisdiction

M.T. argues that by “relating the current injuries only to the second accident, the Tribunal has acted outside its jurisdiction.”
This is not an issue of jurisdiction. The adjudicator did not act outside his jurisdiction by relating the injuries only to the second accident. Rather, the adjudicator was conducting the analysis that he was required to conduct in order to determine whether any of M.T.’s non-minor injuries were caused by the first accident. In order to do so, he was entitled to consider the causative effect of the second accident on his injuries.

Weighing of the evidence

M.T.’s remaining arguments relate primarily to the way in which the Tribunal weighed the medical evidence in making its findings on causation. As this Tribunal has repeatedly stated, the reconsideration process is not an opportunity to ask the Tribunal to reweigh the evidence: P.I. v Aviva Insurance Canada, 2018 CanLII 8091, at para. 7; J.M. v. Wawanesa Mutual Insurance Company, 2017 CanLII 144647, at para. 21.
M.T.’s specific arguments are addressed below.

(a) Failure to consider the details of both accidents

M.T. argues that the Tribunal made a significant error of fact by failing to consider the details of both accidents. He states that the first accident clearly had a more severe impact, as evidenced from the property damage files. I see no error. The Tribunal was entitled to focus on the evidence of injury over other details about the accidents. The extent of property damage is not determinative in establishing the seriousness of injuries.

(b) Finding that Dr. Ghouse’s 2017 report did not establish that M.T.’s injuries were the result of the first accident

M.T. submits that the Tribunal made a significant error of law by rejecting the opinion of Dr. Ghouse without expert evidence to the contrary. Dr. Ghouse indicated in his 2017 report that M.T.’s current symptoms are “directly related to the two indexed motor vehicle accidents.” The Tribunal concluded that Dr. Ghouse’s report does not establish that his injuries at the time of the examination were the result of the first accident, as there was the intervening second accident. I see no error of law, or otherwise, in the adjudicator’s conclusion that the report was not sufficient to establish that the M.T.’s injuries were caused by the first accident. It is open to the Tribunal to accept or reject the evidence before it, regardless of whether there is expert evidence to the contrary.
M.T. also argues that the Tribunal erred by characterizing of Dr. Ghouse’s opinion as a “blanket statement”. The Tribunal’s reasons referred to T.D.’s submission that Dr. Ghouse’s “blanket statement” that the injuries related to two accidents does not assist M.T. in meeting his burden. I am not satisfied that the Tribunal erred in this regard. The Tribunal was entitled to find this statement to be insufficient to establish what injuries were caused by the first accident.
M.T. further argues that the Tribunal did not provide adequate reasons for rejecting Dr. Ghouse’s opinion. However, the Tribunal explained that the injuries resulting from the second accident should not be taken into account in aiding M.T. to meet his burden. The reasons stated that Dr. Grouse’s report may have assisted M.T. but for the intervening second accident. In my view, the Tribunal’s reasons were sufficient.
M.T. also submits that the Tribunal contradicted itself when it stated, “Dr. Ghouse examined the applicant after the March 1, 2015 accident and the second accident, and the applicant’s medical condition at that time, was a result of both accidents” (emphasis by M.T.). However, read in context, this sentence was clearly intended to indicate that Dr. Ghouse stated that M.T.’s condition was a result of both accidents. It is not a finding by the Tribunal that this was the case.

(c) Finding that medical records that post-date the second accident are not evidence of injury from the first accident

M.T. argues that the Tribunal made a significant error of law and fact by finding that the medical evidence from after the second accident, including an MRI report, is not relevant to whether those injuries were caused by the first accident. M.T. submits that for an accident benefits claim, the medical records cannot be limited to a five-month period.
I am not satisfied that the Tribunal erred by considering the injuries documented after the second accident to be insufficient to establish that those injuries were caused by the first accident.
The question on causation is whether the injuries would have occurred “but for” the accident. Given the intervening second accident, for which M.T. was removed from the Guideline, it was open to the Tribunal to find that evidence of injuries following the second accident could not establish on a balance of probabilities that those injuries would not have been suffered but for the first accident.
This does not, as M.T. argues, necessarily limit medical records to a five-month period. It is possible for medical evidence documented after a second accident to identify a prior accident specifically as the cause of a particular injury. However, M.T. does not point to any such evidence.

(d) Characterization of M.T.’s injuries as “mild degenerative changes”

M.T. submits that the Tribunal erred by characterizing his injuries as “mild degenerative changes” contrary to the results of a 2017 MRI. I am not satisfied that the Tribunal mischaracterized M.T.’s injuries as suggested. Rather, the Tribunal was simply stating that the results of post-second accident imaging make note of “mild degenerative changes in the spine (sclerosis).” This was not a characterization of M.T.’s injuries as a whole.

(e) Failure to consider the entire medical record

M.T. submits that the Tribunal made a significant error of fact by failing to consider the entire medical record. Specifically, he submits that the Tribunal failed to consider that M.T. received treatment for his back pain at “Cooksville Rehab” a day before the second accident and then received the same treatment two days after the second accident.
Contrary to M.T.’s submission, the Tribunal clearly indicates in its decision that it considered the entire medical file before it, including clinical notes and records from Cooksville Rehabilitation Clinic. While the Tribunal’s reasons do not refer specifically do the dates of treatment for lower back pain, reasons are not required to refer specifically to each piece of evidence relied on. The fact that M.T. received treatment for lower back pain prior to the second accident does not contradict a finding that M.T.’s injuries were predominantly minor at that time. Accordingly, I am not satisfied that this is an error of fact such that the Tribunal would likely have reached a different decision.
M.T. also submits that the Tribunal erred by relying on the description of injuries in a Treatment Confirmation Form completed only three days after the accident, rather the his current diagnoses. M.T. highlights that injuries can involve slow progression and manifestation of symptoms. While injuries may not necessarily manifest themselves immediately, this does not make it an error for the Tribunal to rely on evidence documented shortly after the accident.

Order

For the reasons set out above, I dismiss M.T.’s request for reconsideration.